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[2021] ZAGPJHC 673
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Aztograph (Pty) Ltd v Ngobeni and Others (2020/43335) [2021] ZAGPJHC 673 (20 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NUMBER: 2020/43335
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
DATE:
20/8/21
In
the matter between: -
AZTOGRAPH
(PTY) LTD
(REGISTRATION
NUMBER: 2015/093389/07)
Applicant
and
G
NGOBENI
First respondent
M
R
SITOE
Second respondent
N
T
NGOCOBO
Third respondent
W
MABUZA
Fourth respondent
C
A
TAMELA
Fifth respondent
D
MOYO
Sixth respondent
T
B
NGULUBE
Seventh respondent
G
S
HONONO
Eighth respondent
J
J
FUMO
Ninth respondent
C
K
MOTSEPA
Tenth respondent
A
BALOYI
Eleventh respondent
A
PERSON KNOWN AS
LIZZY
Twelfth respondent
THE
FURTHER UNLAWFUL OCCUPIERS OF
LUNA
HEIGHTS
Thirteenth respondent
THE
CITY OF
JOHANNESBURG
Fourteenth respondent
J
U D G M E N T
DELIVERED
:
This judgment was handed down electronically by circulation to
the parties’ legal representatives by e mail and
publication
on CaseLines. The date and time for hand-down is deemed
to be 14h00 on 20 August 2021.
F.
BEZUIDENHOUT AJ:
INTRODUCTION
[1]
The applicant seeks an order for the
eviction of the first to thirteenth respondents (“
the
respondents”
) in terms of
section 4(1) of the Prevention of Illegal Eviction From and
Unlawful Occupation of Land Act, 19 of 1998 (“
PIE
”)
from the residential property situated at Units 2, 3, 5, 6, 7,
8, 9, 10, 11, 12, 14 and 16, Luna Heights, 48 Op
de Bergen
Street, corner Market, Fairview, Johannesburg, more specifically
known as Erven 245, 246, 247 and 248, Fairview
Township,
Registration Division IR, Gauteng
(“
the
property”
).
[2]
The respondents oppose the application
firstly on the basis that Aztograph is not the owner of the property,
and secondly that they
are entitled to withhold the payment of rental
due to the deplorable state of the property and because they
themselves have attended
to the maintenance and repairs.
[3]
It is against this backdrop that I am called upon to determine
whether the respondents
are in unlawful occupation and whether they
ought to be evicted.
PRELIMINARY
Supplementary
affidavit and heads of argument
[4]
The respondents have been represented by attorneys throughout these
proceedings.
The respondents paid for these legal services.
[5]
Notwithstanding, the answering affidavit failed to address their
personal circumstances.
In addition, no heads of argument were filed
on behalf of the respondents.
[6]
On the 26
th
of April 2021 I addressed the issues with
counsel appearing for the applicant and the respondents. Counsel for
the respondents
requested an opportunity to file a supplementary
affidavit and to submit heads of argument. I stood the matter down
and insisted
on an application for condonation.
[7]
On the 28
th
of April 2021, a supplementary affidavit was
uploaded onto CaseLines, together with heads of argument on behalf of
the respondents.
The condonation application explains that the
respondents are lay people and that they relied on the advice of
their former attorneys
of record to guide them. They therefore verily
believed that the answering affidavit filed on their behalf dealt
with all the relevant
aspects, but unfortunately this turned out not
to be the case. As a result, the answering affidavit did not deal
with their personal
circumstances and heads of argument were not
filed on their behalf.
[8]
Mr Peter appearing on behalf of Aztograph indicated that the
applicant
did not wish to delay the finalisation of the application
further and therefore did not oppose the filing of a supplementary
affidavit
and heads of argument.
[9]
I accordingly condone the late filing of the heads of argument and
allow the
respondents’ supplementary affidavit.
SUMMARY OF DISPUTE
[10]
The
applicant (“
Aztograph”
)
became the registered owner of the property on the 29
th
of June 2018.
[1]
Aztograph
did however purchase the property as far back as the 15
th
of February 2016.
[11]
The first to eleventh respondents were
tenants of Aztograph’s predecessor-in-title. Therefore, as at
the date of transfer,
and in accordance with the doctrine of
huur
gaat voor koop
, Aztograph became the
first to eleventh respondents’ lessor.
[12]
Upon taking transfer of the property,
Aztograph attempted to engage with all of the tenants at the property
in order to regulate
their tenancies. The tenants brought a complaint
before the Gauteng Rental Housing Tribunal and on 3 September 2018
a
mediation was held at the tribunal between certain of the tenants
and Aztograph’s managing agents, Sirius Property Management.
[13]
An agreement was reached between the
parties in terms whereof Aztograph undertook to furnish the tenants
with proof of ownership
of the property and in addition thereto, the
parties agreed to meet in order to finalize and sign lease
agreements. The aforesaid
meeting was scheduled to take place on the
13
th
of September 2018.
[14]
On the 7
th
of September 2018 Aztograph furnished a letter to the tenants
confirming that it had taken transfer of the property and had
appointed Sirius Property Investment as its managing agents.
[15]
On the 13
th
of September 2018 a second meeting was held between Aztograph
and the tenants where the tenants were provided with a copy
of the
title deeds. Notwithstanding, the respondents persisted with their
denial of Aztograph’s ownership and reiterated
their refusal to
pay rent to Aztograph. As a result, the meeting concluded without
leases being finalized.
[16]
The
first to eleventh respondents failed to pay rent to Aztograph and as
a result, Aztograph instructed its attorneys to address
a letter to
the tenants on the 1
st
of October 2018 cautioning the tenants to pay rental as a
failure to do so would constitute a repudiation of the agreement.
[2]
[17]
Notwithstanding demand, the respondents failed to vacate the
property.
[18]
The
respondents admit that they have not paid rent to Aztograph.
[3]
They attempt to justify their failure to do so on the following
basis: -
[a]
They disputed Aztograph’s ownership of the property;
[b]
When they took occupancy the building was dilapidated and a security
risk and although they implored
the previous property managers to
take action, they failed to do so;
[c]
As a result
of the property managers’ lack of capacity and unwillingness to
act, the tenants made contributions totalling
R6,000.00 and bought
locks to secure the outside gate, waste bins and paid labour costs
for workers to attend to the plumbing issues
experienced at the
property;
[4]
[d]
In
June 2018 the dismal condition of the building prevailed and as
a result, the tenants made a further contribution totalling
R14,000.00 to obtain the services of private plumbers in order to
remedy the leaking pipes and toilets.
[5]
[19]
It is worthy to note that at paragraph 18 of the respondents’
heads of argument the
respondents abandoned the challenge of
Aztograph’s ownership, but persisted with their stance that
since Aztograph did not
attend to the maintenance of the premises and
the security, they were entitled to withhold the payment of rent.
[20]
A point raised for the first time in the supplementary answering
affidavit is that an order for
the eviction of the respondents would
render them homeless and that it would not be just and equitable to
evict the respondents
without giving the City of Johannesburg an
opportunity to investigate the circumstances of the respondents and
to file a report
regarding alternative accommodation.
[21]
Mr Peter, appearing for Aztograph, pointed out that the
respondents did not deny that they
are capable of paying rent and in
fact stated that they would do so on confirmation of Aztograph’s
ownership. The only reasonable
inference that can be drawn, so it was
argued, is that the respondents remain capable of paying rent and
that they are able to
secure alternative rental accommodation
elsewhere without requiring the assistance of the City of
Johannesburg. Mr Peter submitted
that if the respondents believed
that they are entitled to temporary emergency accommodation it should
not be a bar to finding
them in unlawful occupation and granting an
order for their eviction. In this regard, Mr Peter proposed a draft
order that authorises
the respondents to approach the City of
Johannesburg (“
the City”
) should they require
temporary emergency accommodation, the requirement for which shall be
considered on its own merits by the
City.
FINDING
[22]
Where a
private landowner applies for eviction, a court has to make two
enquiries. First it has to consider all relevant factors
and decide
if it is just and equitable to order eviction. If it decided it is
just and equitable to evict, it has to make a second
enquiry into
what justice and equity requires in respect of the date of eviction
and conditions attaching to the order. Once the
first and second
enquiries are concluded, a single order is to be made.
[6]
[23]
Accordingly, what Mr Peter has proposed in terms of laying the
responsibility on the shoulders
of the respondents to approach the
City after an order for their eviction has been granted, would be
contrary to the spirit of
the Constitution of our country and the
judicial oversight required in matters of this nature.
[24]
PIE imposed
a new role on the courts in that they are required to hold a balance
between illegal eviction and unlawful occupation
and ensure that
justice and equity prevail in relation to all concerned.
[7]
[25]
Mr Peter
referred me to a number of authorities
[8]
in support of his argument that this was not a matter that warranted
the involvement of the City of Johannesburg, or the rendering
of a
report, and the provision of alternative accommodation.
[26]
Section 4(8) of PIE provides that if the court is satisfied that all
the requirements of this
section have been complied with and that no
valid defence has been raised by the unlawful occupier: -
“…
it
must grant an order for the eviction of the unlawful occupier, and
determine –
(a)
a just and equitable date on which the unlawful occupier must
vacate the land under the circumstances; and
(b)
the date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date contemplated
in paragraph (a).”
[27]
In
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
[9]
elaborated
on the nature of the enquiry as follows: -
“
Once the court
decides that there is no defence to the claim for eviction and that
it would be just and equitable to grant an eviction
order, it is
obliged to grant that order. Before doing so, however, it must
consider what justice and equity demand in relation
to the date of
implementation of that order and it must consider what conditions
must be attached to that order. In that second
enquiry it must
consider the impact of an eviction order on the occupiers and whether
they may be rendered homeless thereby or
need emergency assistance to
relocate elsewhere. The order that it grants as a result of these two
discreet enquiries is a single
order: Accordingly it cannot be
granted until both enquiries have been undertaken and the conclusion
reached that the grant of
an eviction order, effective from a
specified date, is just and equitable. Nor can the enquiry be
concluded until the court is
satisfied that it is in possession of
all the information necessary to make both findings based on justice
and equity.”
[28]
However,
the extent to which the court must go beyond normal functions was
also placed in perspective by the Supreme Court of Appeal
in
Changing
Tides
.
It states that this injunction must be seen in the context that
courts are neither vested with powers of investigation, nor equipped
with the staff and resources to engage in broad-ranging enquiries
into socio economic issues.
[10]
[29]
An important aspect the court cannot turn a blind eye to is the
rental boycott instigated by
the respondents in this matter.
[30]
Initially, the first to the eleventh respondents were erstwhile rent
payers who withheld rental
on the basis of a denial of Aztograph’s
ownership.
[31]
After the attempted intervention of Aztograph’s managing agents
on 11 October 2018,
the respondents changed the locks to
the building so as to prevent Aztograph from gaining access.
[32]
The case advanced by the respondents is an entitlement to resort to
self help by first engaging
in rent boycott and thereafter
ousting Aztograph from its own property, thereby preventing the owner
of the property to attend
to the maintenance and security of the
property. An electrician appointed by Aztograph’s managing
agent attended to the property
to conduct routine maintenance. He was
threatened by the respondents and upon attempting to leave he
realised that his vehicle
had been vandalised and the tyres had been
slashed.
[33]
It defies all logic why the respondents would do this as their very
complaint was that the building
is not maintained and security
measures are not in place. The only reasonable conclusion is that it
is not about the maintenance
and security of the property, but rather
a ploy not to pay rent for as long as possible or to hijack the
property and recover the
rentals from other tenants for their own
benefit. The ostensible basis for withholding rent is in my view
nothing more than a series
of conclusions presented without any
primary facts. There is not one iota of evidence advanced as to the
poor state of the building
or the maintenance that the respondents
attended to themselves.
[34]
Whilst Aztograph is denied access to the property, it is unable to
provide maintenance or security
to those tenants who remain in good
standing and have complied with their obligations. The housing of
these paying tenants are
being placed at risk and it is only a matter
of time in my view that they will be harassed and intimidated by
those who are withholding
rental. Their constitutional rights to
dignity and adequate housing are being infringed upon and I also have
to take this into
consideration.
[35]
In the premises, I find that the respondents have failed to disclose
a
bona fide
defence and I accordingly find that they are in
unlawful occupation.
[36]
Section 4(7) of PIE provides as follows: -
“
If an unlawful
occupier has occupied the land in question for more than six months
at the time when the proceedings are initiated,
a court may grant an
order for eviction if it is of the opinion that it is just and
equitable to do so, after considering all the
relevant circumstances,
including, except where the land is sold in a sale of execution
pursuant to a mortgage, where the land
has been made available or can
reasonably be made available by a municipality or other organ of
state or another landowner for
the relocation of the unlawful
occupier, and including the rights and needs of the elderly,
children, disabled persons and households
headed by women.”
[37]
The personal circumstances of some of the occupiers were scantily
referred to in the answering
affidavit. A confirmatory affidavit was
deposed to by the first respondent, George Ngubeni. At
paragraph 1.1 he states:
“
I am an adult female…
”.
He also states that he has occupied the property since 1999 and that
3 minor children live with him. They attend school
within the
vicinity of the property. He provided no information regarding his
income.
[38]
The second respondent, Mateus Edwardo Sitoe, similarly states that he
is “
an adult female”
in his confirmatory
affidavit. He states that he has occupied the property from
September 2011. He states that 1 minor
child lives with
him. Mr Sitoe also failed to provide any information regarding
his income.
[39]
The third respondent, Thabisile Lufi Tsabalala, in her confirmatory
affidavit merely states that
she has occupied the premises from the
30
th
of April 2018. The confirmatory affidavit
contains no detail regarding this occupier’s income.
[40]
The fourth respondent, Admirah Ngulube, states in this confirmatory
affidavit (her first one)
that she has occupied the premises from the
1
st
of July 2017 and that 4 minor children
live with her. No details regarding her income are provided.
[41]
The fifth respondent, Christina Angelina Tamela, states that she has
lived on the property from
the 3
rd
of October 2000
and that 3 minor children live with her. No details regarding
her income are provided.
[42]
The sixth respondent, Frank Beeds Moyo, states at paragraph 1.1 that
he is “
an adult female
”. At paragraph 2.1 he
states that he lawfully occupies the property from 2 September 2016
and that 1 minor
child lives with him. Mr Moyo provides no
details regarding his income. In fact, Mr Moyo’s affidavit
is neither
signed, nor commissioned.
[43]
The seventh respondent, Thamsanqa Ngulube, in his confirmatory
affidavit asserts that he
has occupied the property since 2018 and
that 1 minor child and 1 elderly person live with him.
Again, no details regarding
his income are provided.
[44]
The eighth respondent, Promise Nkosingiphile Makhubu, tells the court
that she has occupied the
property since 2011 and that 3 minor
children live with her. Again the confirmatory affidavit is silent on
the issue of income.
[45]
The ninth respondent, Jaim Jose Fumo, states that he has occupied the
property from the 1
st
of July 2016 with 2 minor
children. Mr Fumo similarly does not state a word about his
income.
[46]
The eleventh respondent, Mr Andrew Baloyi, states that he is “
an
adult female”
and that he has occupied the property from
the 29
th
of April 2017 with 1 minor child. The
confirmatory affidavit is silent regarding Mr Baloyi’s
income.
[47]
The twelfth respondent, Phumzile Lizzy Nkosi, avers that she has
occupied the premises since
2005, that 2 minor children live
with her and that she started working as a caretaker at the property.
Ms Nkosi does
not tell this court whether she is still so
employed and what her income is.
[48]
The thirteenth respondent, Litho Zandamela, in his confirmatory
affidavit states that he occupied
the premises from May 2008 and
that 2 elderly persons live with him. He states nothing about
his income.
[49]
It is quite apparent that a generic confirmatory affidavit was used
for all of the deponents.
In fact, in some instances no effort
whatsoever was made to amend the most elementary of details and that
is the gender of the
deponents. Every affidavit contains the same
number of paragraphs and every single one of them deals with the date
of occupation
and the number of occupants in exactly the same
paragraph, namely paragraph 2.1. All of the deponents who have
children also
make exactly the same allegation and that is that the
child or children (as the case may be) “
attend school at the
vicinity of the property
”.
[50]
The main answering affidavit also advances one single personal
circumstance of all the respondents
and that is that they stay with
minor children who are attending schools in the vicinity of the
property (paragraph 8.1).
[51]
In some way it makes sense that the confirmatory affidavits attached
to the main answering affidavit
do not deal with the issue of income.
It is after all the case of these occupiers that they are withholding
rent because the property
is not being adequately maintained. I
therefore have before me, with specific reference to the main
answering affidavit, 13 respondents
who earn an income.
[52]
The supplementary affidavit also deals with the personal
circumstances of the respondents.
[53]
The deponent, Thamsanqa Ngulube, is the seventh respondent and
states that he is an unemployed
asylum seeker with a temporary permit
and passport. A copy of the first page of his passport attached to
the supplementary affidavit
marked annexure “TN” reflects
the expiry date as the 29
th
of April 2021. The
asylum seeker temporary permit issued by the Department of Home
Affairs in favour of the seventh respondent
expired on the 15
th
of
April 2020, which indicates, at least
ex facie
the
document, that the seventh respondent is an illegal foreigner. I
pointed this out to the seventh respondent’s counsel,
who was
unable to furnish the court with any explanation.
[54]
The supplementary affidavit states that: -
[a]
Some of the tenants have been living in the property for more than
7 years;
[b]
There are 60 people living on the property, including more than
15 minor children and 2 elderly
people;
[c]
Nine of the households are female headed;
[d]
The average income of the occupiers is R2,500.00 (I assume this is a
monthly income, although
the affidavit is not clear).
[55]
The personal circumstances of five tenants are set out as follows in
the supplementary answering
affidavit: -
[a]
Nkosingiphile Promise Makhubu has been occupying the property for
11 years. This occupier
is employed by Supaworld as a betting
clerk and earns a monthly income of R3,000.00. Three minor children
live with and are supported
by her. There is no confirmatory
affidavit for this occupier;
[b]
Kgadi Virginia Mbedzi has lived on the property for a period of
5 years. She is unemployed,
although she stated that she lives
with “
and supports
” two adults (aged 21 and 27)
and 1
minor child. The confirmatory affidavit
deposed to by this individual describes her as a tenant;
[c]
Admirah Fichani Ngulube has occupied the property
for a period of 4 years and is unemployed. She lives with
6 other people,
including a minor child. The confirmatory
affidavit deposed to by this occupier describes her as a tenant;
[d]
Cindi Nthabiceng Motsepa has been living on the
property for a period of 8 years. She is employed by CCD
Corrious. She lives
with and supports 2 minor children.
There
is no confirmatory affidavit for this occupier
;
[e]
Phumzile Lizzy Nkosi has been living on the
property for a period of 3 years. She is unemployed, although it
is stated that
she lives with “
and
supports”
1 adult (aged 22)
and 2 minor children.
There is no confirmatory affidavit
for this occupier.
[56]
It is worthy to point out that paragraph 8.1 of the supplementary
affidavit refers to the occupiers
as “
the tenants”
,
which presupposes
a
person who occupies land or property rented from a landlord. This
reference in my view still points to the fact that the respondents
are able to pay rent, but chose not do so.
[57]
Strangely, apart from stating that he is unemployed, the seventh
respondent, the deponent to
the supplementary answering affidavit
states the personal circumstances of five other occupiers, but not
his own.
[58]
I also take note of the fact that the respondents have been
represented by private attorneys
throughout this application. It was
not suggested that the legal services were rendered no a
pro bono
basis.
[59]
The
relevant circumstances that I have to take into account in this
matter are strikingly similar to those the court took into account
in
Teaca
Properties
.
[11]
The legally relevant circumstances are as follows: -
[a]
The occupiers have organised themselves into a militant body that has
seen it
fit to take the law into their own hands. This sort of
conduct is repugnant to constitutional values and the rule of law;
[b]
Pursuant to resorting to self-help through a rent boycott, the
respondents have
set about to usurp Aztograph from control over its
own building and deprived it from a revenue stream;
[c]
As stated before, the occupiers are all people by their own admission
who are
able to pay rent and would have paid rent, but for the
allegation that the building is not maintained.
[60]
In the main answering affidavit the occupiers are all, by their
admission, people who are able
to pay rent and would have paid rent
but for the condition of the property. This is obvious from the fact
that they had, without
demur, done so for many years prior or the
change of ownership of the property to the applicant. The question of
homelessness does
not therefore arise, and there is no role for the
Cityto play in providing them with temporary shelter.
[61]
At paragraph 7.6 of the supplementary answering affidavit the seventh
respondent states that: -
“
The City
[referring to the City of Johannesburg]
which forms part of this
application must file the report as (sic) PIE Act and the
Constitution of the Republic of South Africa
requires in order (sic)
assisting the court to properly adjudicate this matter as evicting us
will render us homeless”
.
[62]
It was
stated in
Teaca
Properties (Pty) Ltd v John Banza and 167 Others
:
[12]
-
“
The
half-hearted submission on behalf of the respondents, during
argument, that they will be rendered homeless if evicted, cannot
trigger the City Council’s obligation to provide temporary
shelter or alternative housing. As pointed out by the City in
its
answering affidavit, its obligations are only triggered if there is
reason for it to assist people who, for reasons beyond
their control,
find themselves in an emergency housing situation that they are
unable to address.”
[63]
The court
also found that the respondents failed to make out a case of
homelessness or that there were women, children, the elderly
or
disabled, whose rights to shelter would be violated if evicted. The
court stated that there was in this regard no shortage of
immediately
available accommodation for the occupiers.
[13]
[64]
Accordingly, I find that the respondents will not be rendered
homeless in the event of their
eviction and that there is no reason
for the City to report. In the circumstances I consider it just and
equitable to evict the respondents.
[65]
Mr Peter in his draft order proposed what amounts to a period of
approximately 60 (sixty) days
within which the respondents are
required to vacate the property.
THE
DISASTER MANAGEMENT ACT, 2002
[66]
Ordinarily, and
having considered all the relevant factors, the determination of a
just and equitable date upon which upon which
the respondents are to
vacate the property, would be the end of the matter. Nowadays, the
position has been complicated by the
onset of the worldwide COVID-19
pandemic. Various restrictions have been imposed upon
residential evictions in terms of the
Regulations issued under
the
Disaster Management Act, 2002
.
[67]
Since the hearing of this application,
and due to a surge in infections, the country was moved to adjusted
alert level 4 on 25 June
2021 and thereafter to adjusted alert level
3 on 25 July 2021.
[68]
In
Rathabeng
Properties (Pty) Limited v Mohlaol
i
[14]
this Court had occasion to consider the impact of the lockdown
regulations on evictions. I agree with the Court’s reasoning
and therefore consider this judgment as binding on me.
[69]
Under
the present Regulations for adjusted level 3 a curfew is in place
which requires persons to return to their residence by a
specific
time, otherwise risk being arrested.
[15]
[70]
Some
assistance can be gleaned from a comparison of the Regulations in
relation to each alert level provided for in the Regulations
that
were published on 29 April 2020
[16]
and
which have been amended from time to time, the most recent amendment
in relation to the hearing date being on 25 July
2021 which
substituted Chapter 4 to provide for an "
Adjusted
Alert Level 3
".
[71]
Chapter 3 of
the Regulations provides for alert level 4 and in
regulation 19
provides for a
'prohibition
on evictions'
as
follows:
"A
competent court may grant an order for the eviction of any
person from land or a home in terms of the provisions
of the
Extension of Security of Tenure Act, 62 of 1997
and the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act,
19 of 1998: Provided that any order
of eviction
shall
be
stayed and suspended until the last day [sic] Alert Level 4, unless a
court decides that it is not just and equitable to
stay and suspend
the order until the last day of the Alert Level 4 period.
"
(my emphasis)
[72]
This
prohibition, as also found in
Rathabeng
,
is clear enough in providing that such order of eviction as
may be granted by a court shall be stayed and suspended
until the end
of Alert Level 4, unless the court decides that it is not just and
equitable to so stay and suspend the order. The
stay and suspension
are linked to the end of Alert Level 4.
[17]
The severity of COVID-19 was sufficient that the Minister of
Cooperative Governance and Traditional Affairs, in consultation with
the relevant Cabinet members, promulgated a stay and suspension of
an eviction order as the default position i.e. unless
the
court ordered otherwise.
[73]
Chapter 4 of
the Regulations, which introduced alert level 3 with effect from 1
June 2020 provided in regulation 36 that a person
may not be evicted
from his or her land or home during the period of Alert Level 3
period, however a competent court may grant
an order for
the eviction of a person from his or her land or home in
terms of the provisions of the Extension of Security
of Tenure Act,
1997 (Act 62 of 1997) and the Prevention of Illegal Eviction from
and Unlawful Occupation of Land Act,
1998 (Act 19 of 1998), provided
that an order of eviction may be stayed and suspended until
the last day of Alert Level
3 period, unless a court decides that it
is not just and equitable to stay and suspend the order until the
last day of the Alert
Level 3 period.
[74]
The default
position under adjusted alert level 3 appears to be that a person may
not be evicted from his home during the period
of adjusted alert
level 3, unless the court decides that it is not just and equitable
to so stay and suspend the order.
[75]
The
introduction of Chapter 5 into the regulations providing for Alert
Level 2, provides for more extensive regulations. The relevant
regulation, Regulation 53, is no longer headed
"Prohibition
on evictions"
but
rather
"Eviction and
demolition of places of residence"
and
reads:
"53. Eviction and
demolition of places of residence.— (1) A person may not be
evicted from his or her land
or home or have his or her place of
residence demolished for the duration of the national state
of disaster unless a
competent court has granted an order
authorising the eviction or demolition.
(2)
A competent court
may
suspend or stay any order for eviction or demolition
contemplated in subregulation (1) until after the lapse or
termination
of the national state of disaster unless the
court is of the opinion that it is not just or equitable to suspend
or stay
the order having regard, in addition to any other relevant
consideration, to—
(a)
the need, in the public interest for all persons to have access to a
place of residence and basic services
to protect their health and the
health of others and to avoid unnecessary movement and gathering with
other persons;
(b)
any restrictions on movement or other relevant restrictions in place
at the relevant time in terms of
these regulations;
(c)
the impact of the disaster on the parties;
(d)
the prejudice to any party of a delay in executing the order and
whether such prejudice outweighs the
prejudice of the person who will
be subject to the order;
(e)
whether any affected person has been prejudiced in his or her ability
to access legal services as a
result of the disaster;
(f)
whether affected persons will have immediate access to an alternative
place of residence
and basic services;
(g)
whether adequate measures are in place to protect the health of any
person in the process of a relocation;
(h)
whether any occupier is causing harm to others or there is a threat
to life; and
(i)
whether the party applying for such an order has taken reasonable
steps in good faith, to
make alternative arrangements with all
affected persons, including, but not limited to, payment arrangements
that would preclude
the need for any relocation during the national
state of disaster.
(3)
A court hearing any application to authorise an eviction or
demolition may, where appropriate and in addition to any
other report
that is required by law, request a report from the responsible member
of the executive regarding the availability
of any emergency
accommodation or quarantine or isolation facilities pursuant to these
Regulations.”
(my
emphasis)
[76]
Ultimately the power
whether to suspend or stay the eviction order remains
discretionary.
[77]
As the court stated in
Rathabeng
common sense should
compel the conclusion that the restrictions provided for in Levels 1
and 2 should be less onerous than those
for Level 3 and 4 where the
risks posed by the COVID-19 pandemic are less than they would be
under Level 3.
[78]
Judicial
notice in my view can be taken of the fact that since the 'third
wave' of the pandemic arrived in South Africa, there has
been some
decline in new infections and that Government is making every effort
to ensure that vaccinations are administered at
a rapid pace.
Nonetheless one cannot ignore the highly infectious Delta variant of
the corona virus either.
[79]
Based upon
such relevant factors I am of the view that it would be just and
equitable to stay or suspend the eviction order
until after
the end of adjusted level 3. There is no indication at this stage
when it will end which works to the benefit of the
respondents in
that it will provide them with ample opportunity to procure
alternative accommodation and to plan their move.
[80]
Under these
circumstances, I find that a period of 30 (thirty) days within which
to vacate the property would be just and equitable.
[81]
This means
that the respondents and other occupants of the property will have
two weeks after the end of adjusted level 3 to vacate
the property,
failing which the eviction order may be carried out a
further two weeks thereafter. This effectively affords
the
respondents and other occupants a month to vacate the property once
the present adjusted level 3 ends.
[82]
The
stay of the eviction order shall be a condition as
envisaged in terms of section 4(12) of PIE, which will enable either
of the parties to approach the court in terms of that subsection, on
good cause shown, for a variation of the eviction order.
This allows for the exigencies that may arise, such as a resurgence
in the spread of the COVID-19 virus. “
The
regulations themselves are in a state of flux and therefore too an
order of suspension cannot be so cast in stone that it cannot
be
revisited should it be necessary to do so if a change in
circumstances so requires.
”
[18]
[83]
I remind
Aztograph of the words of the Constitutional Court in
City
of Johannesburg Metropolitan Municipality v Blue Moonlight Properties
39 (Pty) Ltd and Another
[19]
:
-
“
It could
reasonably be expected that when land is purchased for commercial
purposes the owner, who is aware of the presence of occupiers
over a
long time, must consider the possibility of having to endure the
occupation for some time. Of course a property owner cannot
be
expected to provide free housing for the homeless on its property for
an indefinite period. But in certain circumstances an
owner may have
to be somewhat patient, and accept that the right to occupation may
be temporarily restricted … An owner’s
right to use and
enjoy property at common law can be limited in the process of the
justice and equity enquiry mandated by PIE.”
[84]
As far as the
question of costs is concerned, I find no special circumstances
urging me to deviate from the
normal principle that costs should follow the result.
ORDER
I
therefore make the following order: -
[1]
The first to thirteenth respondents and any person occupying through
them the
residential property situated at Units 2,
3, 5, 6, 7, 8, 9, 10, 11, 12, 14 and 16, Luna Heights, 48 Op de
Bergen Street,
corner Market, Fairview, Johannesburg, more
specifically known as Erven 245, 246, 247 and 248, Fairview
Township, Registration
Division IR, Gauteng
(“
the
property”
), shall vacate the property within 30 (thirty)
calendar days from date of service of this order on the first to
thirteenth respondents;
[2]
On condition, as envisaged
in section 4(12) of the Prevention of Illegal Eviction from
and Unlawful Occupation of Land
Act, 1998, that the present adjusted
level 3 under the Regulations issued in terms of section 27(2) of
the Disaster Management Act,
2002 ("the
Regulations") has ended, the first to thirteenth respondents,
and all those that occupy through, by or under
them are ordered to
vacate the property within fourteen days on the condition being
fulfilled.
[3]
The sheriff and/or deputy
sheriff, assisted by such persons as he or she requires including the
South African Police Services, are
authorised and directed to give
effect to paragraphs 1 and 2 above, including removing from the
property the first to thirteenth
respondents and any other occupants
and/or their belongings, no earlier after the fourteen days after the
period specified in paragraph
2 above, in the event the property is
not vacated within the period specified in paragraph 2 above.
[4]
The first to thirteenth respondents shall pay the costs of the
application,
jointly and severally, the one paying the others to be
absolved, including the costs occasioned by the
ex parte
application brought for the authorisation of the section 4(2)
notice in terms of the
Prevention of Illegal
Eviction From and Unlawful Occupation of Land Act, 19 of 1998
,
F BEZUIDENHOUT
ACTING
JUDGE OF
THE HIGH COURT
DATE
OF HEARING: 30 APRIL
2021
DATE
OF JUDGMENT: 20 AUGUST 2021
APPEARANCES:
On
behalf of applicant:
Adv L Peter
leonpeterc@gmail.com
Instructed
by:
Vermaak Marshall Wellbeloved Inc
Tel: 011 447 3690
megan@vmw-inc.co.za
On
behalf of first to
thirteenth
respondents:
Adv NC Nhlapo
nhlaphochristinah@gmail.com
Instructed
by:
Sithi and Thabela Attorneys
Tel: 072 623 0705
thabela@Sntattorneys.co.za
[1]
CaseLines,
founding affidavit, annexure “FA2”, p 001-33.
[2]
CaseLines,
founding affidavit, paragraph 28, p 001-19 to 001-21.
[3]
CaseLines,
answering affidavit, paragraph 4.6, p 003-10.
[4]
CaseLines,
answering affidavit, paragraphs 3.1 and 3.2, p 003-7 and 003-8.
[5]
CaseLines,
answering affidavit, paragraph 3.5, p 003-8.
[6]
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
2012 (6) SA 294
(SCA) paragraph [25].
[7]
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) paragraph [13].
[8]
Teaca
Properties
(Pty)
Ltd v John Banza and 167 Others
2018
JDR 0614 (GJ);
Boshoga
and Another v Mmakolo and Others
(82446/2016)
[2018] ZAGPPHC 656 (7 March 2018);
Drakenstein
Municipality
v
Hendricks
2010
(3) SA 248
(WCC);
10
& 10a
Kenmere
CC
v Ndebele (Nkomo, Jaca and Liberty Fighters Network Intervening
Parties)
2019
JDR 1203 (GJ)
[9]
Paragraph
[25].
[10]
Changing
Tides
(
supra
)
paragraph [27], p 313.
[11]
Paragraph
[33].
[12]
2018
JDR 0614 (GJ) paragraph [33](d).
[13]
Paragraph
[33](e), pp 13 and 14.
[14]
2021
JDR 0275 (GJ)
[15]
Regulation
33
; GN 650 and 651 of GG 44895
[16]
GNR
480 of GG43258, 29 April 2020.
[17]
See
Anchorprops
31 (Pty) Ltd v Levin
[2020]
ZAGPJHC 183 (28 May 2020), para 40 as an example of the application
of
regulation 19.
[18]
Rhatabeng
par. 62
[19]
2012
(2) SA 104
(CC) at paragraph [40].